IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-20242 Summary Calendar

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

ANTHONY LYNN HESTER

Defendant - Appellant

-------------------- Appeal from the United States District Court for the Southern District of Texas USDC No. H-96-CR-250-ALL -------------------- November 29, 2000

Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.

PER CURIAM:*

Anthony Lynn Hester pleaded guilty to four counts of mail

fraud in violation of

. In determining the

applicable sentencing guidelines, the district court imposed a

two-level “vulnerable victim” enhancement pursuant to U.S.S.G.

§ 3A1.1(b)(1). Before this court is Hester’s motion under

(c)(2) for reduction or modification of his sentence

due to intervening law which was denied by the district court.

A court may modify a sentence imposed “in the case of a

defendant who has been sentenced to a term of imprisonment based

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 00-20242 -2-

on a sentencing range that has subsequently been lowered by the

Sentencing Commission . . . .” § 3582(c)(2). Where there has

been no amendment by the Sentencing Commission, the district

court lacks the authority to modify a defendant’s sentence. See

id. Reduction pursuant to § 3582(c)(2) is discretionary, and

this court reviews a district court's refusal to lower a

defendant's sentence for abuse of discretion. United States v.

Shaw,

(5th Cir. 1994). Because there have been no

amendments made to U.S.S.G. § 3A1.1(b)(1) since the time of

Hester’s sentencing, the district court properly denied his

motion under

(c)(2).

Hester also filed a motion for leave to file a supplemental

brief, citing Apprendi v. New Jersey,

(2000), as

a supplemental authority relevant to his case. Rule 28(j) of the

Rules of Appellate Procedure provides that “[i]f pertinent and

significant authorities come to a party’s attention after the

party’s brief has been filed . . . the party may promptly advise

the circuit clerk by letter . . . setting forth the citations.”

In Apprendi, the Supreme Court held that “[o]ther than the fact

of a prior conviction, any fact that increases the penalty for a

crime beyond the prescribed statutory maximum must be submitted

to a jury, and proved beyond a reasonable doubt.” Apprendi,

. However, no issue concerning elements of the

offense or statutory maximums, as contemplated by Apprendi, was

raised by Hester in his initial brief. Thus, the holding of

Apprendi is not “pertinent or significant” to any issue before

this court. Therefore, this court’s previous order granting No. 00-20242 -3-

Hester’s motion to file a supplemental brief is RESCINDED as

improvidently granted, and Hester’s supplemental brief is ORDERED

stricken from the record.

AFFIRMED.